vember, 1891. Defendant bas u'3ed tbe same words mucq.more oontilwously .· Held, that whataqerued.W ,plaintiff's by the ,use of t;l1e words hi lS7:1 ":" long before !lefendant bega.n, using them hl
SAME-RIGHTS BY REGISTRATION.
tiQ!l tQ. @ybut owners .of trade-murks.
law (21 St. p. 502, c. 138, § 1) gives
rights by registra-
l!\l#1iliity. Suit.:byWiUiamII. lll'(}wer against William G. Boulton and others for alleged infringement ofa certain trade-mark. Bill dismissed., AutoniQKnauth, for plaSntiff. C. a.Kidder, for defendants. WREELEn:, District Judge. A vredecessor of the plaintiff in business, good-will, and trade-marks appears to have used the words "La five shillmants of flow from New York to South Amerin 1886, several in 1887, and several death,.iu. Another predecessor appears to have us.e(1th$lpn similar shipments in J889,and, before his death, in 1890. 'l'h#. pIaWtl.1Y used them similar shipments after that, and caused them tope his trade-mark November. 17, 1891. The de,:fI.rmP,l;l;s used thal'le words much more continuously and ex1l91U' in shipments ever since October 15, :1.884. T4is..' these worda by the plaintiff's predecessor. in 1873 does not been;sqffieientin and time to wake them indicate Willi thai: flour on which they might be placed came whatever in that respect had begun to accrue to biiU b1 that use the abandonment of the use long before thei defendants began them, in 1884. After if either acquired any to tl;l.eexclusive use of those words for that purpose, tl;l.edefenlla1;l:ts, appear, to have done 80. The statute gives no rights but owners of trade-marks. 21 St. 502, through regWtration c.138, § 1. -Let a decree be entered dismissing the bill, with costs.
PUTNAM NAIL 00.
v. AUSABLE HORSENAIL CO.
(01rcuit Court, S. D. New York. January 2, 1893.)
Complainant alleged that by ,irtue of certain patents it had tbe exclusive light to mauufacture, "hOt-forged and baumler-pointed" borsenails hl imitation of tlfe'old hand: process, and that defendant, with intent to cheat and defraud it, bas advertised its nails as "hot forged and hammer pointed," wben in truth thtlyare neither, and that in this way defendant has palmed off its gQqu,s for. those of cotuplainant. It appeared that complainant's nalls arem:ade liS u machine which subjects the nail to quick, percussive blows of, tiWQ pairs of dl'!8, operating alternately upon the entire length of the nall; and that defendant uses a revolving hammer which nets upon the metal by progressive blows,drawing it out from head to pohlt, a ,bevel being formE-d near the point by a stroke of the hammer, ll:lid thl!suriplus metal being then clipped off with shears; and that a siinilarpr6cess of forming the point was called "pohlting by bammer" long complainant's use of the expression hl controversy. Held that,
PUTNAM NAIL CO. V. AUSABLEHORSENAIL CO.
strictly speaking,neither naii is "hammer pointed," and· that in the absence of any proof that defendant actually tried to deceive the public, or that any purchasers were no recovery could be had.
In Equity. Suit by the Putnam Nail Company against the Ausable Horsenail Company· for ()t a trade name. Decree dismissing the bill. Frederick P. Bellamy, for complainant. Livingston Gifford, for defendant.· COXE, District Judge. The complainant and defendant are rival manufacturers of hbrsenails. The complainant alleges that by virtue of certain patents it haS the exclusive right to manufacture ''hotforged and hanrmer-pointed" horsenails in imitation of the old hand process; that the defendant, with intent to cheat and defraud the complainant, has advertised its nails· as .''hot-forged and hammerpointed," when in truth they were neither; that in this way the defendant has deceived the public and palmed off its goods for those of the complainant. The defenses are that the words in controversy are not trade-marks, but are truly descriptive of defendant's nails, and were used by the defendant before they were used by the com·: plainant; that defendant's advertisements have caused no damage to the complainant, but the latter has slandered and misrepresented the defendant and injured its sales; and that the complainant, for this reason, does not come into court with clean hands. An attempt is made in the record to hold the defendant liable for several statements made regarding its manufactures. All of these, but one, were effectually disposed of at the argument, and the. controversy was narrowed down to the single question: Has the defendant trespassed upon the complainant's rights by saying that its nails were ''hammer-pointed?'' The court understands that it was conceded, in reply to a question by the court, that the defendant had a right to use all of the other statements complained of, but if not conceded, it was overwhelmingly proved, and the examination will, therefore, be confined to the single proposition above stated. Strictly speaking, neither the nails of the complainant nor the defendant are "hammer-pointed." They are not made in the same manner as the old hand-made nails. The complainant uses a machine by which the nail is subjected to the quick, percussive blows of two pairs of dies, or hammers, operating alternately upon the entire length of the nail. The nail is formed and pointed by this method, and does not require the removal of s 11perfluous metal by clipping or shearing. The defendant uses a revolving hammer, which acts upon the metal by a series of progressive blOWS, drawing it out from head to point. A bevel is formed near the end of the nail by the stroke of a hammer or beveling die; the surplus metal is then clipped off and the nail is finished. W1rlch of these two methods more nearly resembles the old-fashioned way of forming the nail by placing the metal on an anvil, and subjecting it to the blows of the blacksmith's hammer, is in dispute. Certainly the defendant's process shows as many points of analogy as the complainant's. There could be no pOfilsible
criticism of the defendant's ,acts were it not for the fact that it the superfluous ,metal at the poiut.,'80 that the question still'furthernal'rowed as follows: liil the defendant guilty of falsehood in ,descri1;lipg,llails ,whicl]. ,thrQughout at tb,e q;y,;luwnmering, as "hammer-pointed," be· cause the final operation m forming the point consists in cutting of\' the surplus metal? It is thought not, for the reason that the description is true. A simillW fprocess was Called "pointing by hammer" long prior to the use by complainant of the expression in controversy. The defendant's description may not contain the whole W:Q.tJ;1", but there is, fraudulent about 'it. For a condensed of the det;endant's, process it is as near accuracy as such usuallJ' are., it is as near as many of the comreconun,endations of, its nails. On reading pi one would be justified in the that its ,are the b.est in the world, and tJm,tthE:' defendant's nails :arlj! IW ,liable to split alld sliver in the hoof ' the Uls which horseflesh is heir to can he directly rq, their balefll1 The defendant could have said that its were ''hoNorged, and cold-pointed", with perfect propriety, bl,J,titilil argued that ,the substitution of the expression ''hammerfor leaves the defendant open to the charge of fl::3ud. It is clear that equity cannot deal with such technical complaints. It might, perhaps, have been fairer and more accurate if the defendant had said that its nails were ''hot· forged, ha.Iljlmer and ,shear pointed," or "hot-forged and. pointed by hammering- and court, however, cannot compel such nicety or of expresRion 01' go into the business of arranging the in whiGh merchants shall plaoo their goods upon the An .' false statement may, in certain circumstances, ,be restrained, but it beyond the power of a court of equityto"eompel comwercial men to tell all that they know about their goods. There j,snot the l$lightest proof that the defendant has tMed to.deceive or palm off its goods as those of the complainant. ,'.the proof that purchasers were ever, actually deceived of the words ''hammer-point.ed,'' is wholly inby the defendant's If. the constant reiteration of its position by the complainant in the cloud of advertisements and circulars which it has put. forth epuld enlighten the public and inform purchasers, there was little chance for them to go astray. In the complainant's brief are alluded to as producing a "universal ill· these pressioJl," The defendant's nails speak for themselves; they show the she;tr on the sides. All buyers could see these marks, and if in. their judgment the shearing was detrimental they would not have bought the nails. They purchased with their eyes wide open in this respect. The ci,e-fendant's advertisements, trade-marks, labels, and brands are totally different from complainant's, and strongly negative the idea.t1lat any'imposition was attelnpted or thought of. The defendant has fl,dvertised its na.ils upon their own merits, believing them to be the best llails manufactured. There has been no deception, no
PUTNAM NAIL CO. tI. AUSABLE HORSENAIL CO.
concealment no false pretenses. These nails have entered the market as the "Ausable nails," and what reputation:they have gained has been under their own name and upon their own merits. The statement is repeatedly made in the complainant's brief that the complainant has the exclusive right to manufacture hot-forged and hammerpointed horseshoe nails in imitation of the old hand process. I not find the proof of this, especially in view of the admitted fact that the defendant formerly made such nails under a patent which has now expired, and is, therefore, free to all, and the other fact that the defendant used the words "hammer-pointed" long before the com· plainant used them, and has so used these words to describe its nails Assuming, as of course we must, that continuously since complainant's patent is valid, complainant. has the exclusive right to make nails lmder that patent. But a patentee cannot prevent hammering be('ause he has invented a new hammer. There is nothing to prevent the defendant or any other manufacturer from making hotforged or hanuuer-pointed. nails so long as they do not infringe the complainant's patent. That such nails have been made and are being made without such infringement is abundantly proved. They were made by the defendant before they were made by the complainant. I have examined the comprehensive and carefully prepared digest of decisions :i,n the defendant's brief, but the foregoing concluilions upon tho facts render it unnecessary to refer to these authorities in detail. The law is succinctly stated by Mr. Justice Field as follows:
In such cases is granted only where the defendant, by his marks, signs, labeis, or in other ways, represents to the public that the goods sold by him are those
"The case at bar cannot be sustained as one to restrain unfair trade. Relief
manufactured or produced by the plaintiff, thus palming olI his goods for those of a different manufacture, to the Injury of the plalntilI." Goodyear's India Rubber Glove Manuf'g Co. v. Goodyear Rubber Co., 128 U. S. 598, 9 Sup. Ct. Rep. 166.
I am of the opinion that the defendant is not within the rule above stated; that it has not been guilty of fraud or falsehood and that it has not palmed off its goods as those of the complainant or attempted to do so. Trade should, as far as possible, be left untrammeled. It is already so hampered by patents, trade-marks, copyrights, labels, and other necessary impediments that the most careful and conscientious merchant never feels entirely safe from attack. It should not be vexed still further by inconsiderate judicial meddling. Parties ought not to be encouraged in running to the courts with every petty quarrel over the language used by a rival in advertising. Such language always deals in hyperbole. The public clearly understands this and gives to such exaggerations their due weight. In controversies like the present it is much wiser to leave the decision to the sure and just arbitrament of public opinion. No man who nnfairly describes his goods can long succeed. He cannot advertise one article and sell another and an inferior article without being detected. The public will surely find him out. Confidence in the man is gone, and loss of business is sure to follow. This record allows that both parties were ascribing to their own manufactures
ticel. "The bill is dismissed.
cailnot think ttmt,w this compeUhaabeen,guilty of fraudulent and dishonest prac-
GILL & ]J'ISJ-Il1)R, Limited, v.
(01rcuit Oourt of .Appeals, Third Oircuit. 1.
December 23, 1892.)
Anchitrter party made 'on November 5th, after describing the ship as tra,qmg," provided that. She should sall with "all convenient speed" lay days not to commence before the lst day of January; tQ have the. optlo:Q. of· QallceliD.g the charterl?a11ty in case the wss not "ready for cargo" at the port of loading on or before the 31gMiW$'" of January. Held. that there wss no implied agreement that the shipahould' be ready Qn the ,1st of January unless :prevented by tile exthere of the clmrter party when tile vesp:p,the last it appearing that at the date of theriQntrilct She was S. C., for a voyage to Bremerhti.ven,:Whlcb.rvoyage'she m8.deWlthreasonable diligence, 'and that she was for necessary. Depll1rs. 50 Fed; Rep. 941, affirmed. .. SAKE.-RuAinllmsS FOR CARGO-'I-SUNDAY. ' The ship having arrived on the last day of the month, and being theIl- in ·to . 3Jild n()tlceof, IiJUGh. readiness beln,g party fulfilled, although month 11'9 SUtidi:i.y, and the work of loading could not beglnuWlt1!,tb.e fullowlng day., " 50' Fed. Rep. 941, affirmed. 8. READINEssi' I'; , '1'he rule of the Philadelphia Maritime Exchange providing that, when vessels;cb.a:riered to load grnlnrat that port are ready for'cargo, the notice of readin.essmust, to be vaUd; fie ;accompanled by It certlflcate of readiness cannot be refrom the! surve;yors of the board· of marine garded' ·ss'incorporated into It oharter party made in the city of York: for the:.employmenj ot a British vesiel, wben the oontract itself makes no reference to suc-h rule andtbe owner isignol'll.l1t of Its existence.
Appeal from the District Court of the United States for the Eastern District of 'Penns:tlvania. In AdDliralty. Libel by JohnL. Browne, owner ()f the steamship Gill & Fisher, Limited, to recover for the breach ofa charter. party. The court below decreed in favor of the libelant. 50 Fed. Rep; 941. Respondents appeal. Affirmed. R, o. for appellants. Henry Jrfl;l,p,.ders, (Flanders & Pug1l., on the brief,) for appellee. Before AOHESON and DALLAS, Circuit Judges, and BUFFINGTON, DistcictJudge. AOHESON, Circuit Judge. By a charter party dated New York, November 5;,1891, and that day executed, Gill & Fisher, Limited, of Philadelphia; cha'rtered the British: steamship Harbinger for a voyage from Philadelphia to Queenstown,' Falsmouth, or Plymouth for orders, with a cargo of grain, at· specified freight"rates. The charter partY,after describing the Harbinger as' "now.· trading," provided "that, the said steamship 'being tight, staunch, 'and strong, and in every way <fitted for the voyage; 'With liberty 'W! take outward cargo